Trade union representatives (“Shop Stewards“), who are also employees of the employer, represent the interest of the trade union and its members in the workplace. Shop Stewards form part of the workforce as employees who assist and communicate workplace issues and facilitate negotiations and bargaining between the trade union and the employer. This article will unpack and detail what it means to an employer to have a Shop Steward in a workplace.
The functions of Shop Stewards are found in section 14 of the Labour Relations Act 66 of 1995 (“the Act”). Shop Stewards have the right to assist and represent employees in grievances and disciplinary proceedings; have the right to monitor the employer’s compliance within the workplace, monitor any law regulating terms and conditions of employment, participate in negotiations of recognition agreements; and report any alleged contravention of workplace rules or policies to name a few.
The activities of Shop Stewards’ must be regulated and agreed to between the representative trade union and the employer. This agreement assists in terms of channelling the functions of a Shop Steward and is regulated by a recognition agreement.
Employers may be faced with a situation where a trade union will demand to enter into a recognition agreement which indicates that they require an exorbitant amount of Shop Stewards in the workplace. It is always advisable for an employer to follow section 14 of the Act, which provides for the number of Shop Stewards required in a workplace. Section 14 of the Act provides that the members of a registered trade union representing a majority of employees in a workplace are entitled to elect a Shop Steward if the union has at least 10 members in the workplace. The number of Shop Stewards that may be elected is determined according to the number of union members in a specific workplace. If, for example, there are between 10 and 50 union members in a workplace, the union may elect 2 Shop Stewards. If there are more than 1 000 members, 1 additional Shop Steward may be appointed for every 500 additional union members. The maximum number of Shop Steward that may be elected is 20.
We advise that an employer should follow section 14 of the Act when entering into a recognition agreement. Through negotiations with a recognition agreement may further indicate how many shop stewards are required should parties want to waive section 14 above.
The LRA is silent on the placement or location of Shop Stewards in the event of more than one “workplace” of the same employer. Case law, as well as section 213 of the Act, indicates that a workplace with different branches will constitute a single workplace. This was held in Chamber of Mines of South Africa acting in its own name and obo Harmony Gold Mining Company Ltd and another  3 BLLR258 (LC) that a workplace as defined in the LRA referred to the entire workforce and is not limited to the bargaining unit, and accordingly three mines owned and operated by a consortium of employers constituted a single workplace. Therefore, employers are required to strategically consult and deliberate on how many Shop Stewards will be appointed to each site. This should be carefully considered to avoid unnecessary travel requests or excessive time off for union members to consult with their elected Shop Stewards. The recognition agreement will outline how the union rights will be regulated and how a Shop Steward must exercise their powers.
From time to time, employees may want to consult their Shop Steward about any labour or general concerns they may face in the workplace. It will be quite disruptive for employees to consult at any time with their Shop Steward. As a result, continuous work disruptions and leave from work can give rise to taking disciplinary action against employees and or the Shop Stewards themselves. Therefore, the best option for employers is to indicate in the recognition agreement when and how many times the Shop Steward can consult or hold meetings with their members. For example, in the recognition agreement, it can be indicated that such talks may be held during lunch breaks and/or after working hours. Should a Shop Steward not comply with the recognition agreement, it will be taken as a contravention of the agreement, which may lead to the employer taking disciplinary steps against the Shop Stewards.
In an unreported CCMA case of NUMSA obo Mahlangu vs Hernic Ferrochrome (Pty) Ltd case number NW2126-01, the chief shop steward was dismissed for misconduct related to his duties as a Shop Steward. The CCMA found that the dismissal was fair in all respects because the employer was able to prove to the CCMA arbitrator that the Shop Steward’s status as a Shop Steward did not exempt him from adhering to the employer’s rules.
Section 14 (5) of the Act entitles a Shop Steward time off during working hours without loss of pay to perform these functions and to be trained in any subject of relevance to the performance of the representative’s functions. Importantly, the employer must set reasonable timeframes and reporting leave structures for a Shop Steward to take time off, as indicated in section 14(5).
It is suggested that the parties should negotiate the time off and sign and agree to the same in terms of the recognition agreement. When parties enter into a recognition agreement, it is advisable to include the total number of leave days that a Shop Steward will enjoy. In practice, 10 to 15 days off per annum is given to each Shop Steward, however, nothing prevents the parties from negotiating their number of leave based on the company’s operational requirements or developing a pool of leave days that can be used collectively by all Shop Stewards in the workplace. The Shop Stewards belonging to the same recognised trade union may apply for leave days in advance from the pool.
Article by: Tshepang Makhetha
Dispute Resolution Official – Pretoria